01983368
03-18-1999
Lori S. Fernandez, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Lori S. Fernandez v. Department of the Army
01983368
March 18, 1999
Lori S. Fernandez, )
Appellant, )
)
v. ) Appeal No. 01983368
) Agency No. O9709H0200
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. and the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq. The final agency decision was received by
appellant on February 24, 1998. The appeal was postmarked March 25, 1998.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds that appellant previously filed an appeal with
the Merit Systems Protection Board (MSPB) on the same matter.
BACKGROUND
The record indicates that on July 15, 1996, appellant filed a
mixed-case appeal with the MSPB from the agency's action removing
her from the position she held as a General Supply Specialist. In an
Initial Decision dated July 16, 1997, the Board accepted jurisdiction
over the appeal and mitigated the agency's action. The agency was
ordered to cancel the removal action and substitute in its place a
reduction in grade to a position which does not involve contracting and
procurement responsibilities or duties involving the administration of the
agency travel program. The agency was also ordered to issue a check to
appellant for back pay with interest and to adjust benefits accordingly.
Subsequently, on September 29, 1997 following the Board's initial decision
regarding appellant's removal, appellant contacted an EEO counselor
alleging that the agency had failed to comply with the Board's Order.
Informal efforts to resolve appellant's concerns were unsuccessful.
Accordingly, on November 17, 1997, appellant filed a formal complaint
alleging that she was the victim of unlawful employment discrimination on
the bases of race (African-American), color (Black), religion (Catholic),
mental and physical disability (Keratoconus in both eyes, glaucoma,
and clinical depression), sex (female) and reprisal (prior EEO activity).
On February 23, 1998, the agency issued a final decision dismissing
appellant's complaint on that grounds that it raised matters that had
been appealed to the MSPB.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.302(b) provides that an aggrieved person
may initially file a mixed case complaint with an agency or an appeal
on the same matter with the MSPB, but not both. 29 C.F.R. �1614.302(b)
further provides that if an individual files both a mixed case complaint
and an appeal on the same matter, whichever is filed first shall be
considered an election to proceed in that forum. EEOC Regulation 29
C.F.R. �1614.107(d) provides, in part, that an agency may dismiss a
complaint where the complainant has raised the same matter in an appeal
to the MSPB.
In the instant case, appellant initially filed an MSPB appeal on July
15, 1996 regarding her removal. An Initial Decision was issued on July
16, 1997 finding that the agency's removal of appellant was improper.
The MSPB ordered the agency to cancel appellant's removal, reduce her to
a grade not lower than GS-5, issue a check for back pay with interest
and adjust benefits accordingly. Subsequently, on September 29, 1997,
appellant sought EEO counseling concerning allegations of discriminatory
conduct by the agency. The record further indicates that on October
20, 1997 appellant filed a Petition with the MSPB, for enforcement of
its decision against the agency. Prior to the Board's decision with
respect to appellant's Petition, she filed a formal EEO complaint with
the agency. In her November 17, 1997 formal complaint, appellant alleged
that the agency failed to enforce the Board's July 16, 1997 decision,
regarding accommodation, reassignment and benefits. Thereafter, on
March 6, 1998, the Board issued a Show Cause Order requiring the agency
to submit evidence that it has provided the interim relief required by
the Board's Initial Decision.
Upon review, the Commission determines that appellant's EEO complaint
encompassed the same issues raised in appellant's MSPB appeal and that
appellant's complaint allegations were inextricably intertwined with
matters raised in her appeal to the MSPB. See Hopkins v. United States
Postal Service, EEOC Appeal No. 01961059 (February 5, 1997). The record
indicates that the Board accepted jurisdiction over appellant's mixed
case appeal. The Commission determines that appellant should raise her
concerns regarding the agency's compliance with the Initial Decision
with the MSPB and not with the agency. In that regard, we find that
the agency's decision dismissing appellant's complaint was proper.
CONCLUSION
Accordingly, the agency's decision dismissing appellant's complaint is
hereby AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, YOU MUST NAME AS THE DEFENDANT
IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT
HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
March 18, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations